2004 RNC Arrests Unconstitutional

Federal Judge Says NYPD Didn't Have Probable Cause to Make Mass Arrests of Protesters Marching in New York City

By

Sean Gardiner

Updated Oct. 1, 2012 10:09 p.m. ET

A federal court judge ruled Monday that hundreds of protesters at the 2004 Republican National Convention were arrested without probable cause and that other New York Police Department tactics employed then were illegal.

The ruling opens the city up to potentially significant monetary damages and shines a spotlight on the NYPD's methods of handling large-scale, unpredictable protests.

The city said it was considering an appeal but declared a partial victory because the judge upheld the so-called no-summons policy—a special tactic adopted for the convention. That policy mandated that officers must arrest people for minor crimes and noncriminal violations that normally would result in only a summons or ticket.

The lawsuit stemmed from police action in general at the Republican convention, which drew hundreds of thousands of protesters to Manhattan to protest the Iraq War and the policies of former President George W. Bush. Specifically, the suit focused on Aug. 31, 2004, dubbed "The Day of Rage" by police because their intelligence indicated that some protest groups were determined to cause trouble in the city then.

On that day, a group of protesters staged an unpermitted War Resisters League march from the World Trade Center to Madison Square Garden.

The crowd only made it a few steps onto Fulton Street when a deputy police chief warned them to disperse, according to court records. By then they were surrounded by police with netting, according to court records. Within seconds the deputy chief ordered what turned out to be 226 arrests on charges related to blocking the sidewalk. The arrests were recorded by a film crew taping a documentary.

City attorneys argued that officers had "group probable cause" to make the arrests, meaning the crowd was acting as one. On Monday, U.S. District Court Judge Richard Sullivan in Manhattan rejected the city's theory and ruled the arrests on Fulton Street illegal.

"Based on the undisputed facts, and particularly the video of the Fulton Street march and arrests, the court finds that there was not even arguable probable cause to make those arrests," the judge ruled.

"An individual's participation in a law-breaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual's own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest," the judge's ruling said. "The Fourth Amendment does not recognize guilt by association."

"We're gratified that the judge rejected the city's claim that the NYPD has the discretion to engage in mass arrests when officers observe individual unlawful activity," said Donna Lieberman, the executive director of the New York Civil Liberties Union, which brought the lawsuit. "This ruling is a victory for the right to protest—a core democratic principle. It places an important check on the abusive policing tactics used to suppress protests during the 2004 RNC."

The city claimed victory on two issues. First, the judge upheld the "no-summons" policy, calling it the city's "answer to a threat derived from intelligence sources—namely, that demonstrators aimed to 'shut down the City of New York and the RNC.'"

Second, city attorneys said the judge ruled that fingerprinting those arrested under the "no summons" policy didn't violate the First and Fourth amendments of the Constitution, as some lawsuits charged.

"The Court upheld these policies under the most exacting judicial scrutiny possible, finding them constitutional and warranted in light of the threats the city faced during the RNC," said Peter Farrell, senior counsel at the city's Law Department.

But Christopher Dunn, associate legal director of the New York Civil Liberties Union and lead counsel in the case, said the judge did find that police violated state law by arresting people charged with noncriminal violations. About 1,400 people were taken into custody and later fingerprinted after being charged only with a violation, including those arrested at the Fulton Street and Union Square protests.

And that may cost the city, Mr. Dunn said. In deciding damages, he said the court can consider the illegal arrests and fingerprinting as well as the detention time and conditions of the former bus depot that was used as a holding area for those falsely arrested during the RNC. He said the ruling leaves the city facing "significant" financial damages.

"With this ruling, the time has come for the city to put this controversy behind it, to settle the rest of the convention cases, and to make sure that mass arrests never happen again here," Mr. Dunn said.

The judge said he couldn't rule in favor of either the city, which sought to have another part of the lawsuit thrown out, or those claiming the mass arrest of about 400 near Union Square were illegal.

The judge said he couldn't determine based on what the city and lawyers for the arrested presented whether police made a sufficient effort to remove innocent bystanders from lawbreakers attempting to block the streets or if probable cause existed in every arrest. That case is still headed for trial.

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